2015 ORS
166.220¹

Unlawful use of weapon

(1) A person commits the crime of unlawful use of a weapon if the person:

(a) Attempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon as defined in ORS 161.015 (General definitions); or

(b) Intentionally discharges a firearm, blowgun, bow and arrow, crossbow or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle within the range of the weapon without having legal authority for such discharge.

(2) This section does not apply to:

(a) Police officers or military personnel in the lawful performance of their official duties;

(c) Persons discharging firearms, blowguns, bows and arrows, crossbows or explosive devices upon public or private shooting ranges, shooting galleries or other areas designated and built for the purpose of target shooting;

(d) Persons lawfully engaged in hunting in compliance with rules and regulations adopted by the State Department of Fish and Wildlife; or

(e) An employee of the United States Department of Agriculture, acting within the scope of employment, discharging a firearm in the course of the lawful taking of wildlife.

Notes of Decisions

Evidence that defendant carried cocked, holstered pistol, that he told police he would meet force with force and firearms with firearms if police moved into building which he and others were unlawfully occupying, and that gun was later found to be loaded, was sufficient to support finding that defendant carried dangerous weapon with intent to use it. State v. Essig, 31 Or App 639, 571 P2d 170 (1977), Sup Ct review denied

Menacing is not lesser included of­fense of carrying dangerous weapon within intent to use. State v. Cummings, 33 Or App 265 (1978)

Officer was entitled to search wallet within purse incident to arrest for pos­ses­sion of dangerous weapon with intent to use it unlawfully. State v. Rose, 109 Or App 378, 819 P2d 757 (1991)

Convic­tion for at­tempted use of or intent to use dangerous or deadly weapon does not merge with con­vic­­tion arising out of same con­duct for inten­tional discharge of de­scribed weapon within city or residential area or in direc­tion of per­son, building, structure or vehicle. State v. Crawford, 215 Or App 544, 171 P3d 974 (2007), Sup Ct review denied; State v. Gray, 240 Or App 599, 249 P3d 544 (2011), Sup Ct review denied

Where per­son causes serious physical injury to an­oth­er with dangerous or deadly weapon, crime of assault in sec­ond de­gree does not merge with crime of unlawful use of weapon. State v. Alvarez, 240 Or App 167, 246 P3d 26 (2010), Sup Ct review denied

Attempt to use unlawfully, or carrying or pos­ses­sion with intent to use unlawfully, dangerous or deadly weapon is not lesser included of­fense of inten­tional discharge of de­scribed weapons within city or residential area or in direc­tion of per­son, building, structure or vehicle. State v. Gray, 240 Or App 599, 249 P3d 544 (2011), Sup Ct review denied

Where defendant intended to threaten victim with immediate use of crowbar but did not use physical force, defendant "used" weapon. State v. Ziska, 253 Or App 82, 288 P3d 1012 (2012), aff'd355 Or 799, 334 P3d 964 (2014)

Under this sec­tion, "use" refers to employ­ment of weapon to inflict harm or injury and employ­ment of weapon to threaten immediate harm or injury. State v. Ziska/Garza, 355 Or 799, 334 P3d 964 (2014)

This sec­tion is divisible statute; thus, where court did not determine which of two of­fenses, at­tempt or pos­ses­sion, defendant's con­duct constituted for purposes of determining whether defendant committed crime of violence in viola­tion of condi­tion of release, court's revoca­tion of term of supervised release was invalid. United States v. Willis, 795 F3d 986 (9th Cir. 2015)

Where defendant told 9-1-1 dispatcher "I'm sitting here with a shotgun . . . if they don't want to do something, then I'll do it myself . . . ," defendant admitted to holding up shotgun shell to send message to airplane pilot and had "serious thoughts" about shooting at airplane and upon arriving at defendant's residence of­fi­cers saw shotgun on defendant's porch and pistol holstered to defendant's belt, evidence was sufficient to support con­vic­­tion under this sec­tion. State v. McAuliffe, 276 Or App 259, 366 P3d 1206 (2016)

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